Is Kiddushin an Imposition of Ownership? – Following Rivka Lubitch’s Article

Contents of the Article

In her article, ‘On the Question of the Validity of the Woman’s Acquisition in Kiddushin,’ published in this issue, Rivka Lubitch raises a painful problem: the asymmetry between husband and wife in the halakhic couple relationship. According to Lubitch, the root of the matter lies in the act of kiddushin, in which the woman is ‘acquired’ by her husband, at least for certain purposes, as an acquisition of prohibition. Since ‘acquiring a woman’ does not accord with the values of today’s modern liberal society, and is also contrary to the law, ‘the law of the land is the law,’ it is invalid. In addition, she argues, women today do not in fact consent to be betrothed in this sense of purchase, and she therefore proposes abolishing the kiddushin component in marriage in accordance with the law of Moses and Israel and adopting another model, such as the three alternative models brought in an appendix to her article: Noahide marriage, concubinage, or seclusion without kiddushin. In my opinion there is no real difference among the three, and in substance they amount to one model: living together without kiddushin. Such a discussion requires us to enter foundational questions in the philosophy of Jewish law, and I cannot do that here. I will therefore confine myself mainly to sketching principled lines for the discussion and, where possible, to referring readers to places where fuller elaboration can be found. I will later address the sources and proofs she adduces, in order to sharpen my criticism and argue that, in my opinion, her analysis lacks a solid basis; finally, I will criticize the claims of ‘the law of the land is the law’ and ‘women’s intention’ that she raises. In my book, now under editorial preparation, I present a systematic and orderly account of most of these issues.

Do Kiddushin Impose Ownership? Following Rivka Lubitch’s Article. Michael Abraham. Rabbi Dr. Michael Abraham formerly taught at the hesder yeshiva in Yeruham and now teaches at the Institute for Advanced Torah Studies at Bar-Ilan University. He is involved in solving the problem of women denied a bill of divorce and in the struggle against the rabbinate, among other ways through private rabbinical courts.

Akdamot 31 • Adar II 5779. A. Framework of the discussion. I will open by sketching the framework within which this discussion is conducted and presenting the basic questions that underlie it. Two methodological remarks. Personally, I embrace liberal values, even when no source for them is found in the Torah or the sages, and especially full equality between spouses, insofar as possible. I have often written that Jewish law requires renewal and changes that will adapt it to our generation, and that there are valid halakhic ways to do this, not ‘Reform’ ones. Precisely because I support changing and refreshing Jewish law and adapting it to liberal values, it is doubly important to me that the proposals be properly grounded, both for the tactical reason that demands for change that lack a basis will provoke antagonism from rabbinic leadership and from the religious public generally toward change, something that exists anyway, and for the substantive reason that halakhic change must meet three criteria: it must be necessary, it must be valid, and it must be useful. In brief, to ground an argument for change in Jewish law, we must present the problem, showing that change is necessary; establish the halakhic mechanism, showing that it is valid; and show that the problem is indeed solved by the change, showing that it is useful. Rivka Lubitch’s analysis, in my view, suffers from many failures, and her proposals are unfounded on all these counts. I emphasize that, contrary to what is common in such discussions, I will not raise ‘slippery slope’ arguments here, because I categorically oppose such arguments in Jewish law. First, because they attempt to bypass the need for genuine engagement and they paralyze the discussion. Second, because they mortgage a certain present for the sake and in the name of an uncertain future. And most importantly, because they are invalid. If a certain act is permitted, it is permitted even if there are a thousand slippery-slope reasons to forbid it. To forbid it, a decisor’s mere statement that he fears a slippery slope is not enough; a decision of an authorized institution, the Sanhedrin, is required, and that does not exist today. In Jewish law, anything that has not been forbidden is permitted. What is a kinyan? The crux of the dispute. According to Lubitch, the term ‘kinyan’ that we use with regard to kiddushin expresses the husband’s ownership of his wife, at least an acquisition of prohibition. In my view, the term ‘kinyan’ in Jewish law does not necessarily express ownership but rather an act that creates some halakhic effect, in the case of kiddushin, a contract. These are the two possibilities between which we must decide in the question of kinyan in kiddushin. On this, see briefly my article, ‘Is There an “Enlightened” Idolatry? On Attitudes toward Gentiles and Changes in Jewish Law,’ Akdamot 19, Sivan 5767, p. 65. In the above-mentioned book I devote an entire section to a systematic presentation of the theory of halakhic change. The question of validity also includes the question of authority: who can carry out such a change. On this see at greater length my friend Nadav Shenarav’s article, ‘The Jewish Ark of Lies,’ on Nadav Shenarav’s website. The status of a community rabbi vis-a-vis his community is somewhat different, but I will not enter that here. In my article, ‘What Is a Legal Effect? Jewish Law, Logic, and Fidelity to It,’ Tzohar 2, 2000, pp. 71-86, I discussed the meaning of the term ‘legal effect’ in Jewish law and explained that it is a kind of metaphysical reality. A kinyan act creates this metaphysical state.

Do Kiddushin Impose Ownership? In Jewish law, as in other legal systems, thought or speech alone is not enough to create a valid legal status; one must do so in a way that expresses definitive intent, usually through an act, described by the expression ‘an act of kinyan.’ Only the kinyan act gives force to the new legal-halakhic status. Thus, for example, a kinyan act is performed to create the legal effect of terumah, partnership, agency, contract or agreement, and other sorts of legal and halakhic effects that are not necessarily ownership. This is the meaning of the expression ‘and we made a kinyan from him.’ In many cases the kinyan act does in fact create ownership, and because in Hebrew ‘kinyan’ is linked to purchase, the term evokes a connotation of ownership for many people. But in my view, ownership is only one example among many of the legal consequences of a kinyan act, and it is not its ultimate meaning. Marriage too is a kind of legal effect that is not ownership; it is more like a contract between two people. Like any other legal effect, it requires a kinyan act to create it, but the kinyan act grants nothing and purchases nothing; it is intended to impose the marital bond. Therefore, the fact that kiddushin requires a kinyan act does not, in my view, indicate that it is a matter of ownership of the woman. This can be understood better in light of Maimonides at the beginning of the Laws of Marriage, where he describes the development of the institution of kiddushin: ‘Before the giving of the Torah, if a man encountered a woman in the marketplace and both he and she wished to marry, he would bring her into his home and have relations with her privately, and she would thereby become his wife. Once the Torah was given, Israel was commanded that if a man wished to marry a woman, he should first acquire her before witnesses and only afterward she would become his wife, as it says (Deut. 22), “When a man takes a woman and comes to her.”‘ If kiddushin were merely the purchase of the woman, as Lubitch claims, it is not clear what the Torah came to add at the giving of the Torah to the situation that had prevailed before that. Did the Torah come to bring non-egalitarian darkness into the world and demand that the woman become her husband’s property, instead of the ‘egalitarian’ and ‘enlightened’ situation that supposedly prevailed beforehand? This interpretation seems to me absurd, both in terms of the ancient worldview and in terms of the Torah’s aims. It is far more plausible to me that the Torah came to repair a flawed situation that prevailed before the giving of the Torah, not to worsen it. The purpose of kiddushin was to precede marriage with the making of a contract between the spouses, in order to institutionalize the couple’s bond and make it binding, stable, and harder to dissolve. If before the giving of the Torah it was a spontaneous decision to live together, like boyfriend and girlfriend, and the dissolution of the relationship was likewise simple and immediate, they simply separated, from now on the Torah requires that marriage be preceded by a kinyan act that expresses definitive intent and creates a legal effect of marital status. This is what I mean when I say that kiddushin is a contract between the parties and not the purchase of a woman. Couplehood without kiddushin is mere romance, and kiddushin comes to place it on legal foundations. A couple coming to marry needs to understand that their bond has, first of all, a binding contractual and legal meaning, even before the romantic and human realization of their relationship. The act of kiddushin creates the legal layer at the basis of married life. On the halakhic meaning of these two components in the marital bond, see my article, ‘A Two-Story Model of the Couple Relationship in Jewish Law,’ in Michael Abraham and Gabriel Hazut, eds., Be-Tzel ha-Hokhmah, Kfar Hasidim, 2010, p. 347. On the human meaning that kiddushin adds to married life, see my article, ‘On Cupid and Other Animals: Why Marry?’, forthcoming in a volume edited by Haim Brenson on the family in Judaism, published by Yedioth Books. The article also appears on my website.

Akdamot 31 • Adar II 5779. Is marriage in accordance with the law of Moses and Israel possible without kiddushin? At the beginning of her article Lubitch writes: ‘In an appendix, I will propose formulating a halakhic ceremony devoid of the component of kiddushin and kinyan, based on various proposals already published in the past, a ceremony that will be a fitting religious alternative to the existing ceremony and that will lend a dimension of sanctity to the covenant entered into by a couple seeking to marry in accordance with the law of Moses and Israel.’ The three mechanisms she brings in the appendix may perhaps be halakhically valid, I will not enter that here, but all of them involve nullifying the positive commandment of kiddushin or at least acting against the Torah’s will, which required that kiddushin precede marriage. My claim is not that concubinage or Noahide marital relations are not existing halakhic mechanisms, but that they are halakhically forbidden, except perhaps in special cases. Otherwise, what is the meaning of the commandment to marry a woman by kiddushin? Following halakhah A at the beginning of the Laws of Marriage, where he describes the meaning of kiddushin, Maimonides adds in halakhah B: ‘These takings are a positive commandment of the Torah, and a woman is acquired by one of three things: by money, by document, or by intercourse. By intercourse and document this is from the Torah, and by money it is from the sages. These takings are what are called kiddushin or erusin everywhere, and a woman acquired by one of these three things is called betrothed or espoused.’ That is, life without kiddushin is sinful life; it is Noahide couplehood, as things were before the giving of the Torah. True, there are early authorities who held otherwise, such as the Rosh in Ketubot, chapter 1, no. 12, and in their view kiddushin is only a preparatory act for the commandment to be fruitful and multiply, meaning that one who performs the act of kiddushin does not thereby fulfill a commandment. But according to all opinions, the Torah requires us to precede marriage and childbearing with kiddushin. That is the meaning of a preparatory act for a commandment, and therefore it is required of us, whether or not, formally speaking, a positive commandment is fulfilled by the act itself. As we have seen, this is the meaning of the addition that was given to us after the Torah was given. Kiddushin is not one way among several of living as a couple; it is the form of couplehood the Torah requires of us. Lubitch’s call to hold an alternative ceremony without a kiddushin component, which she nonetheless describes as ‘in accordance with the law of Moses and Israel,’ is misleading. She is proposing a return to the situation of the Noahides before the giving of the Torah, that is, to forgo the law of Moses and Israel and to cancel a positive commandment, or at least a preparatory act for a commandment, of kiddushin. If we had no other way out and were in a real conflict between morality and Jewish law, there might perhaps be room to consider siding with morality against Jewish law. But when we have an interpretive way out that reconciles Jewish law with morality by seeing kiddushin as a contract, why should we draw a conclusion that abolishes a commandment? My emphasis. See Lubitch’s article in this issue. See also in greater detail Rabbi Aharon Lichtenstein’s lecture, ‘On the Commandment of Kiddushin,’ on the Virtual Beit Midrash website of Yeshivat Har Etzion.

Do Kiddushin Impose Ownership? B. The logic of halakhic discussion. Before I examine one by one the various sources and arguments in the two approaches, I will explain why, in my understanding, there is a principled logical flaw in Lubitch’s article, both at the level of the sources discussed and in the conclusion drawn from them. A discussion of this sort is composed of two levels, and it is important to attend to both. On the first level we must classify the kinds of sources and distinguish between their authoritative status; the second level is the drawing of conclusions. The kinds of sources are: the Torah itself, without need of interpretation, in rabbinic language, ‘a matter the Sadducees concede’; decisions of an authorized institution, the Sanhedrin, or talmudic rulings based on interpretation, in biblical law, or legislation, in rabbinic law; and rulings of post-Talmudic decisors. This discussion is important when we ask what God’s will is. According to a conception committed to Torah and Jewish law, what appears in the Torah itself certainly reflects God’s will, whereas conclusions reached through human interpretation, even if they concern biblical law, are not necessarily such, and from our perspective do not necessarily hit upon the Holy One’s intention. Within the interpretive stratum itself we must distinguish between interpretation by an authorized body, that is, the Sanhedrin, with respect to which there is a commandment of ‘do not deviate,’ and rulings of unauthorized decisors, namely, those who are not the Sanhedrin or who acted after the Talmud. The Talmud is commonly granted a status parallel to that of the Sanhedrin, apparently by virtue of acceptance by the public and the sages as a whole; on this see at length Rabbi Shlomo Fischer, Beit Yishai: Derashot, Jerusalem 5764, no. 15. The second level in the discussion, as noted, is the conclusion. Even if we assume that in one of these sources we have found a halakhah that in our view contradicts morality, four principled possibilities stand before us: a. to decide that our morality is mistaken, and that Jewish law in fact reflects the correct morality; b. to determine that the ruling is immoral and nevertheless adopt it; c. to determine that the halakhah is immoral and reject it; d. to decide that the halakhah is immoral and therefore probably mistaken, and that we must interpret the source in question differently. As I said at the outset, like Rivka Lubitch, I too trust my values, including those that have no source in the Torah or the sages, modern and liberal values, and therefore I reject the first possibility, which cancels morality. But precisely for that reason I assume that the Holy One should not be expecting immoral behavior from me. Hence I must return to the first level of the discussion and ask: what kind of source among the three listed above are we dealing with here? If it is something explicit in the Torah, then option c clearly falls away, and we are left with two possibilities: to adopt the halakhah despite its immorality because it has religious reasons, option b, or to understand that we have not interpreted it correctly, option d. When it comes to a halakhah that does not depend on interpretation, option d disappears and we must observe the halakhah despite its immorality. In my article ‘Rape in Time of Battle: Jewish Law and Morality,’ published on my website, I argued that Jewish law has goals of two kinds, moral and religious, and when there is a contradiction between Jewish law and morality there is no necessity to surrender one of them. Rather, one can say that morality instructs us to do X, but the religious goals obligate us to do Y. There is no principled contradiction in such a situation, though practically speaking we must of course decide how to act. This is no different from any other conflict of values. For lack of space I will not enter into the matter here in detail. See my website, Rabbi Michael Abraham: Responsa and Articles.

Akdamot 31 • Adar II 5779. This is of course a theoretical statement, for there is in fact no halakhah that is wholly independent of interpretation; a halakhah can always be interpreted in different ways. With respect to laws formulated by post-Talmudic decisors, the required conclusion is that they probably erred in their interpretation, conclusion d, because on their reading the Torah or the Holy One expects us to behave immorally, and that is implausible. In laws established by an authorized institution or in the Talmud, the interpretation obligates us even if, in our view, it is not correct, conclusion b. In that case we must bow our heads and wait for the establishment of another authorized institution that will change the existing ruling, or adopt a valid way of changing, bypassing, or adapting it to our circumstances. Application of the logical analysis to our issue. Throughout the article Lubitch brings statements from early and later authorities, down to rabbis and judges of our own day, that reflect a proprietary conception of marital relations. How should we relate to opinions among the early authorities, if such there are, that see the woman as the husband’s property? What does that say about Jewish law? If our starting point is that equality is an important value and that it is not reasonable that the Holy One wants from us behavior that is immoral, the natural conclusion is d: that those statements of the early authorities stem from the culture and patriarchal worldview within which they lived and worked. We, who cannot accept them as the correct interpretation of kiddushin, must interpret the institution of kiddushin differently from them, that is, see it as a mutual contract and not an act that imposes ownership. In doing so, of course, we are ourselves doing exactly what those earlier and later authorities did before us, and nothing could be more legitimate. But Lubitch insists on seeing those sources as an expression of the Torah’s will and intent, that is, she grants them authoritative status in interpreting kiddushin as a proprietary acquisition, and from there she jumps to the conclusion that, in the name of equality, we must abolish a positive commandment of the Torah and live as a couple without kiddushin. In my view, as noted, the necessary conclusion is that the views of those early authorities do not express God’s will or the Torah’s intent, and therefore we must interpret Torah and Jewish law differently, that is, see kiddushin as a mutual contract, and not the imposition of ownership, and fulfill the commandment to betroth a woman according to the law. I would summarize my claim as follows: suppose there is a verse that says X, and along comes an early authority who interprets it as Y, an interpretation that in our view is unreasonable and immoral. Two possibilities then stand before us: a. to assume that the Holy One is immoral and to abandon our commitment to His law and His commands; b. to assume that the interpreter did not correctly understand the intention of the Holy One and the Torah, and to interpret it differently. A believer proceeds from the starting point that the Holy One is righteous in all His ways and that the Torah does not instruct us to commit injustices. Therefore the necessary conclusion is to adopt path b and not path a. Yet Lubitch for some reason chooses precisely to draw conclusion a. Admittedly, if there were clear evidence in the Talmud itself for a conception of kiddushin as ownership, our situation would be more difficult, since the Talmud is a source of binding halakhic authority, even if in our view it is not right. Below I will show why, in my opinion, there is no such evidence. In any event, even if there were such evidence, what I have said so far shows that it would not really be relevant to our discussion. On this see my book, above, note 1.

Do Kiddushin Impose Ownership? C. Examining the evidence and the sources. In this section I wish to show that there is another interpretive way out, which allows us to see kiddushin as a contract rather than the imposition of ownership, and to do so in a manner well anchored both in the Talmud and in the early authorities. Sources for the conception of kiddushin as a contract. Lubitch cites the well-known words of Ramban, Gittin 9a, and likewise Ritva and Ran on Rif ad loc., who writes that a woman is not her husband’s property, but she dismisses them with the claim, ‘It should be emphasized that Ramban did not write this in the context of the status of women in marriage, but only as a distinction between the laws of divorce and the laws of monetary documents.’ Why is the context important? Ramban’s statement is crystal clear: a woman is not the monetary property of her husband. These words are joined by other early and later authorities, and all of them understand Ramban in his plain sense. The presentation as though all the early and later authorities see kiddushin as ownership of the woman is tendentious and baseless, and it seems as though Lubitch is searching for a problem in a forced way even where none exists. Above I explained that even if all the early authorities held that kiddushin is the imposition of ownership upon the woman, the conclusion would still be that we must interpret the matter differently from them. But if most of the early and later authorities explicitly write otherwise, what is the problem at all? Why does Lubitch choose an unnecessary and unreasonable interpretation merely in order to display a problem? Beyond these explicit statements, there are further proofs for the conception that kiddushin is a contract rather than ownership. For example, the Gemara at the beginning of tractate Kiddushin, 2a, learns that a woman is acquired by money from the expression ‘taking’ with regard to Ephron’s field: just as a field is acquired by money, so too a woman, by a verbal analogy of ‘taking.’ At first glance this seems overwhelming proof that the woman is considered her husband’s property, just like a field that belongs to its owner. But afterward the Gemara looks for a source that a woman is acquired also by document and by intercourse, and finds for each its own special source. Yet a field too is acquired in three ways, see Mishnah Kiddushin 1:5, by money, document, and possession, and the analogy to the betrothal of a woman would seemingly be obvious, intercourse paralleling possession, since it is the ordinary ‘use’ there. Add to this the talmudic rule that there is no verbal analogy by halves, Zevahim 48a, meaning that when a verbal analogy is made the comparison between the two contexts should be complete. On Lubitch’s view, I would expect the acquisitions of document and intercourse with regard to a woman to be learned from the field by that same verbal analogy as well, but the Gemara seeks other sources. Moreover, the early authorities do not even comment on this, which means it appeared self-evident to them. It seems to me that the obvious explanation is that the Gemara and the early authorities do not see the comparison between woman and field as a true verbal analogy, because it is obvious to them that there is no similarity between acquiring a field and betrothing a woman; the betrothal of a woman is not the creation of ownership. All they learn from the field is only that the term ‘taking’ means the transfer of money, and therefore in the case of a woman as well the ‘taking’ is done by money. For an explanation of the matter see at length the lectures of Rabbi David Poversky and Rabbi Shmuel Rozovsky on Gittin 2a, and many others. For example, in the novellae of Rabbi Nahum Partzovitz, ad loc., no. 16, he writes: ‘This is what Maimonides and the early authorities meant when they wrote that the woman is not the husband’s property and that the laws of prohibitions are not like monetary laws, and this is obvious.’ In fact, Ritva in his novellae ad loc., s.v. ‘It is written here,’ comments that this is not a verbal analogy but merely a clarification.

Akdamot 31 • Adar II 5779. Beyond that, unlike an ordinary monetary acquisition in which a person pays the value of the object he is buying, in the betrothal of a woman the husband does not pay her value but betroths her with a perutah. We have never heard that the sum of the kiddushin is determined according to the woman’s value or the value of what she provides. The meaning of this is that the money in the case of a woman is not payment of the value of merchandise being purchased, but a formal act that creates a legal effect, the marriage contract. An interesting implication of this is what Rabbi Chaim Ozer Grodzinski proved, cited by his brother-in-law in Afikei Yam, part 1, sec. 16, no. 11: although with respect to acquisition of a field there is a dispute, see Sema and Taz on Shulchan Arukh, Hoshen Mishpat, beginning of sec. 190, whether the money given is consideration for the merchandise or a formal act, in the betrothal of a woman, according to all opinions, it is a formal act and not payment of value. Lubitch writes that the husband acquires the woman with respect to the supply of sexual services. But no less than the woman is obligated to him, the husband too is obligated to provide her with marital services, her food, her clothing, and her conjugal rights. It is therefore likely that what we have here is not the purchase of property or rights in the woman but rather the making of a bilateral contract between them. The problem of asymmetry between husband and wife. I do not mean to claim that Jewish law is egalitarian toward women. There is a measure of equality in it, since the obligations are mutual, and perhaps the husband’s obligations toward her are even more significant than hers toward him. But the prohibition on the husband to have sexual relations with another unmarried woman is light, whereas a woman who has relations with another man, whether unmarried or married, is liable to death and her children are mamzerim. The husband can divorce his wife whenever he wishes, even against her will, though Rabbenu Gershom limited this by his ban, but she cannot divorce him if he does not agree. True, one should think of halakhic ways to minimize the asymmetry, but for our purposes my claim is that the asymmetry is not the result of the woman being her husband’s property. A stranger who has relations with a married woman is an adulterer, not a thief. On the face of it, adultery is a prohibition between a person and Heaven and not a prohibition between one person and another, vis-a-vis the husband, like the other forbidden sexual relations in the Torah, such as with his sister or his mother. Moreover, a woman who committed adultery becomes forbidden both to her husband and to the adulterer. I can understand why she is forbidden to the adulterer, but why is she forbidden to her husband? If the woman is his property, is this not a case of ‘the poor man’s ewe’? The obvious conclusion is that the laws that discriminate against the woman as against the husband are not connected to his ownership of her. They are prohibitory categories, not proprietary ones. For illustration one may look at prohibitions of benefit. Orlah fruit or pork belong to their owners, yet the Torah forbids their use, pork for eating and orlah even for benefit. Does the fact that he is forbidden to use them mean that he is not their owner? Not necessarily. On the simple view, he is the full owner on the legal plane, but on the plane of prohibition he is forbidden to use his property. I argue the same with regard to a wife: the husband is not her owner, and her dependence on him, for example in divorce, is a consequence of halakhic prohibition and not of her being his property or acquisition. Formally one can claim that in this respect there is full equality between men and women, since in every instance of forbidden relations the man and the woman who take part in them violate the same prohibition and incur the same punishment. There is apparently a dispute about this among the early authorities, but I mention it here only to illustrate the distinction.

Do Kiddushin Impose Ownership? One can and should think about how to overcome this troubling asymmetry, but it has no connection to ownership of the woman. Many men and women are troubled by the character of the act of kiddushin, which must be performed by the husband and not by the wife: he gives her a ring and by that act ‘takes’ her to himself as a wife. See Kiddushin 5b. The early authorities explain that this is learned from the wording of the verse, ‘When a man takes a woman,’ and not when a woman takes a man. Their source is the Gemara, Kiddushin 4b: ‘Had the Merciful One written only “and she goes out without payment,” I would have said that where she gives him money and betroths him, the betrothal is valid. Therefore the Merciful One wrote, “When a man takes,” and not when a woman takes.’ A claim often heard in our circles is that the asymmetry in the act of kiddushin expresses inequality and is what creates the asymmetry in the relationship of kiddushin, that is, that the husband acquires his wife. Many couples look for a way to soften the inequality, for example, by having the woman give a ring to the husband as well, though in some forms this may invalidate the kiddushin. But this interpretation is absurd. First, because on the practical plane the woman must consent and agree; without that there is no kiddushin, and therefore this is not a one-sided act. So why does it matter who buys the ring and who performs the act of transferring it to the other side? That is just the form of the ceremony. On the substantive plane, the act is symmetric and depends equally on both parties. Beyond that, the interpretation that the asymmetry in the act stems from the husband’s kinyan in his wife is implausible. As I explained, the act of kiddushin is a kinyan act that concludes the contract between the spouses, and the Torah, for its own reasons, requires that it be done specifically by the husband. This requirement does not express a purchase of the woman, and there is conclusive proof of that from the talmudic law of betrothal by document. In the sugya at Kiddushin 9a the Gemara rules that in the sale of a field the document is written by the seller, ‘My field is sold to you,’ whereas in kiddushin the document is written by the husband, ‘Behold, you are betrothed to me,’ and in the case of a minor he writes to her father, ‘Behold, your daughter is betrothed to me.’ If the husband is buying the woman, we would expect the document to be written by the ‘seller’ and not by the ‘buyer.’ The Gemara explains this by the wording of the verses, but the question still remains why there is such a difference. The reasonable answer is that the betrothal of a woman is not her purchase and the document of kiddushin is not a deed of acquisition. It is not written like a deed of acquisition, but is written by the husband. And even if my interpretation here is not correct, one thing emerges from this sugya in a clear and sharp way: the directionality in the act of kiddushin, the requirement that it be performed specifically by the husband, does not come to express the imposition of the husband’s ownership over the woman. For if that were so, the Torah should have said that in betrothal by document the woman should write a document to the husband, since she is supposedly the ‘seller.’ But the Torah insists that even in betrothal by document the act be performed by the husband, unlike the acquisition of property. We see that in kiddushin, for some reason, the Torah wants the act to be done specifically by the husband, but not because this expresses the imposition of his ownership over the woman.

Akdamot 31 • Adar II 5779. The issue of asymmetry appears with even greater force in divorce, since unlike kiddushin, where the woman’s consent is required, in divorce everything is placed in the husband’s hands, in the law’s original form, were it not for Rabbenu Gershom’s ban. But from the sugya above it emerges that here too this indicates only a halakhic asymmetry and not a proprietary kinyan that he has in her. True, in divorce the ‘seller,’ the husband, is the one who writes the document, the bill of divorce, and here it is indeed like the sale of a field. But it is clear that this is not done because he is the seller, but because the Torah, for its own reasons, requires that the act be performed specifically by him. In divorce, unlike in kiddushin, there is a substantive asymmetry. But even so, it has nothing to do with ownership or kinyan. A response to Lubitch’s proofs. We have seen that from the Talmud and from several early authorities there clearly emerges the conception that kiddushin is not the imposition of ownership upon the woman. In her article Lubitch brings several proofs from the early and later authorities which, in her view, prove that the act of kiddushin is the imposition of ownership. As I explained, even if she were right it would change nothing for our purposes, because that would be a minority view, and even if it were the majority view, the necessary conclusion would still be to interpret the commandment differently and not to abandon it entirely. I will now show, though as noted there is no need for this, that the proofs she brings are themselves problematic. a. According to Lubitch, the location of the Mishnah ‘A woman is acquired’ in the first chapter of Kiddushin, which discusses the various kinds of kinyan, woman, Hebrew male and female slave, Canaanite slave, and animal, proves that this is a kinyan. First, this ignores the associative character of the Talmud, for later in that same chapter the discussion turns to a father’s obligations toward his son, the adjacency of wave-offerings and presentations, commandments dependent on the Land, and so on. The connection is associative, and the placement of the betrothal of a woman proves nothing about its nature. Thus, for example, the first chapter of tractate Megillah contains a collection of mishnayot that deal with comparisons and exceptions on various topics, ‘there is no difference between this and that except for such and such.’ Second, even if we assume there is a non-associative link between the mishnayot, her words here beg the question. We all agree that this is a kinyan; we disagree about what sort of kinyan it is, whether a kinyan of ownership or a kinyan that concludes a contract. Therefore there is nothing surprising in the fact that the law of kiddushin is located in this chapter dealing with kinyanim. b. According to Lubitch, the Gemara in Ketubot 57b says that the betrothed wife of a priest may eat terumah because she is his ‘acquisition of money.’

It may be that this asymmetry is rooted in human custom, and not only in ancient times, according to which it is the husband’s way to be the active party in matters of courtship, he courts the woman. The Gemara, Kiddushin 2b, says: ‘For it was taught: Rabbi Shimon says, Why did the Torah say “When a man takes a woman,” and not write “when a woman is taken by a man”? Because it is the way of a man to pursue a woman, and not the way of a woman to pursue a man. This is like a person who has lost an object. Who seeks after whom? The owner of the lost object seeks his lost object.’ Thus is the way of the world, that the man is the one who courts, as is generally still the case today, and not because there is any kinyan of his in her.

The Maharsha explains that the woman was created from a rib taken from the man without his knowledge, and therefore she is in the category of his ‘lost object,’ which he seeks. In any event, we should at least agree that this has nothing to do with the question whether the act of taking on his part is an expression of the imposition of ownership.

Perhaps one should call upon the public to change the custom of the world and create a more egalitarian social reality, in which women too court their partners, and then perhaps the woman could give her husband a ring. What matters for our purposes is that this is rooted only in social customs and has no connection to seeing kiddushin as the imposition of ownership.

Do Kiddushin Impose Ownership? I agree that this is done by a kinyan of money. The question is whether that means that the priest is the owner of the woman and that she is his property. That itself is the point under dispute. Again, this begs the question. But not only does it beg the question; according to some views it is simply incorrect. The law that a priest’s wife may eat terumah is learned from another source in the Torah as well, Num. 18:11: ‘Every pure person in your household may eat it,’ see Jerusalem Talmud Yevamot 9:5 and parallels. Several later authorities prove that this refers to a woman married to a priest, and not only to a betrothed woman, for example in Imrei Moshe by Rabbi Moshe Sokolovski, Warsaw 1921, no. 13. If, as Lubitch argues, she is his property, why is another source needed for this? After marriage, on her view, she is even more her husband’s property. Responsa Avnei Miluim, no. 17, explains that for this reason the Shitah Mekubbetzet there claims in the name of Rashi: ‘This too is his acquisition of money, for he acquired her by the money of kiddushin.’ At first glance these words are superfluous, for if the woman is her husband’s property, why should it matter whether she is acquired by money or in some other way? If she were acquired through intercourse, would the law be different? From here it follows that the Gemara means only that, formally speaking, the kinyan of kiddushin is performed by money, and therefore the woman is called in the Torah his ‘acquisition of money,’ even though she is not his property. Lubitch herself cites these words of the Shitah Mekubbetzet and writes as follows: ‘According to Ketzot ha-Hoshen, the intention of the Shitah Mekubbetzet is to note that although there is no monetary acquisition by the betrothed man with respect to his betrothed woman, therefore he explains “his acquisition of money” to mean that he acquired her by the money of kiddushin, and her right to eat terumah is mainly because of the acquisition of prohibition in her, whereby she is forbidden to the whole world as a married woman; and since that acquisition of prohibition was acquired for him by means of money, it is called his acquisition of money.’ The reference is to the words of the author of Ketzot ha-Hoshen as cited in Responsa Avnei Miluim, no. 17. We thus see that these words are interpreted with no connection to ownership at all, but only because the legal effect took place through the giving of money. As to the meaning of the term ‘acquisition of prohibition’ that appears here, see below. The priest’s sons too may eat terumah, and they are certainly not his property. The reason they eat terumah is that they are part of his family, just like his wife, who is also included in ‘every pure person in your household.’ But a betrothed woman, who is not yet entirely considered his family, because she is not yet in his household, requires another source, and this is learned from the fact that marital status is imposed upon her by money. Incidentally, Ritva, Ketubot 58a, writes that the verse ‘his acquisition of money’ is not the real source for this: ‘You should know that this verse, “his acquisition of money,” does not concern the wife of a priest at all, but only the slave of a priest, for the wife of a priest is derived for us in the Sifrei from the verse “Every pure person in your household may eat it,” and the rabbis cite that other verse merely for convenience of formulation in various places.’ Needless to say, these interpretations were not said as apologetics. In the period of the early authorities no one felt any need to defend himself or apologize for the gender inequality of Jewish law. This is simply how the early and later authorities understood the Torah and Jewish law. c. Another source Lubitch brings is Ketubot 2b, where the Gemara discusses a woman who fell ill between betrothal and marriage: when the husband divorces her, must he give her a ketubbah? True, some of the early authorities there write that the woman is acquired by the husband, for example Tosafot ha-Rosh, and similarly Tosafot and Rashba there: ‘The woman is the man’s acquisition of money, like his slave, his ox…’

Akdamot 31 • Adar II 5779. ‘…and his donkey, and her fate depends on his fate.’ It does indeed seem that the Rosh means a connection of ownership, although perhaps there is room to say that he means that a contract was concluded between them and a bond was created, so that the woman’s fortune depends on the husband’s. But we should remember that the discussion there is monetary, and therefore there is almost no avoiding conducting it as though it involved a monetary transaction. In addition, these statements are made for the woman’s benefit, that is, their purpose is to obligate the husband to give her a ketubbah. Therefore they tell him that his fortune caused her illness. But even if all this is not right, at most we have here a doubtful dispute among the early authorities, since these statements stand in opposition to the positions and proofs we have seen until now. d. Rabbi Yitzhak Elchanan Spektor, one of the greatest decisors of nineteenth-century Europe, writes: ‘We do not forbid his wife to him, for we have no ability to cause the loss of the right of lien that the husband has over his wife, and it is like a field belonging to the husband.’ Rabbi Yitzhak Elchanan Spektor explains that the husband has a lien upon his wife, and Lubitch understood this to mean a kind of ownership, lien in the sense of servitude. But that is by no means necessary. If we follow my view, the meaning of the contract between them is that each party has rights with respect to the other, and each is bound to the rights of the opposite party. When a person signs a contract with me, I have a right to receive from him what he undertook. That certainly does not mean that he is my property. Lubitch devotes a later section to arguing that the wife’s rights against the husband are obligational, contractual, whereas his rights against her are proprietary. But all the proofs she brings for this are entirely implausible, and some of them actually prove the opposite. In another responsum that she cites, Rabbi Spektor discusses a deserted wife who wishes to remarry on the basis of a witness who heard from another witness that her first husband had died. He rules that the woman should be treated like an object with a presumption of prior ownership. In his words: ‘Where we are dealing with a doubt whether she was betrothed, she has the standing…’

Rabbi Yitzhak Elchanan Spektor, Responsa Ein Yitzhak, part 1, Even ha-Ezer, no. 16. Her main proof is a dubious linguistic inference from Maimonides, Laws of Vows 12:9. But she ignores the fact that Maimonides there explicitly writes that the law with respect to the mutual obligations is completely symmetric. There is no proof at all from his words that he means to distinguish between these types of rights. Beyond that, at most this is an abstract definition with no practical implications, for as noted, the law in practice is completely symmetric. Then she brings sources showing that there is a difference between a husband who rapes his wife and a man who rapes another woman.

But again, this difference exists even if one sees the rights as obligational, for even then he still has such rights with respect to his wife and not with respect to other women. Immediately afterward she mentions that some brought proof against her approach from the fact that a woman can demand to leave

her husband if he is repulsive to her, Maimonides, Laws of Marriage 14:8. But in her view this proves the opposite: that as long as she has not left, she is acquired by him. This is of course absurd, for that is precisely the picture that arises from obligational rather than proprietary rights. Where have we ever found that a person’s property can demand to leave its owner whenever it wishes? She also brings the fact that Maimonides in Laws of Forbidden Intercourse 21:10 speaks of the husband’s permission to do

with his wife as he wishes. Lubitch interprets this, for some reason, as permission to do so by force, even though she herself notes that this does not follow from his language. On the contrary, he is speaking there about a prohibitory permission and not about a legal right vis-a-vis the woman. She brings proof of this from the Ran, but why should the Ran testify about what Maimonides means? As people are wont to ask, are you pitting one man against another? Nedarim 20b explains it in terms of a kinyan that the husband has in the woman. But even if we were somehow to connect the Ran to Maimonides, once again we have question-begging. I claim that this kinyan is an obligational right. How do the Ran’s words prove anything against my view? Finally, as I noted in the previous section, even if she were right about the views of the Ran, Maimonides, and the Netziv

and the like, why does she decide to choose precisely these problematic views, on her own account, and determine that this is indeed the meaning of kiddushin and indeed the correct interpretation of the Gemara?

Do Kiddushin Impose Ownership? ‘…the presumption of the prior owner, analogous to seller and buyer where we judge concerning land and a sold object, for with respect to land and the object there is the reasoning of setting it upon the presumption of the prior owner, that it has not left the possession of the first owner.’ This already seems like a real misunderstanding, because in the laws of claims and counterclaims in Jewish law there are presumptions that determine upon whom the burden of proof lies. All he is saying is that when one seeks to remove the woman from her presumption, valid testimony must be brought for that. There is no statement here at all that she is the husband’s property. I would note that to remove a woman from the presumption of prohibition to a priest, or from any other presumption of prohibition, two witnesses are likewise required. He himself phrases it as ‘analogous to seller and buyer where we judge concerning land and a sold object.’ It is clear that he means only to compare the matters and not to identify them. Later in her article Lubitch protests against the demands that a husband has upon his wife, her obligation to have sexual relations with him, because in her view they reflect a conception of her as his property. This is the same confusion we saw earlier. One who signs a contract must fulfill it, and this does not diminish his value or his autonomy. He could have chosen not to sign that contract, and once he agreed to it he must keep his word. Nothing follows from this to the effect that he is the other’s property. e. Lubitch then brings a series of quotations: Rabbi Abraham Min ha-Har writes, ‘that she is acquired to him for intercourse, as it is written, “When a man takes…”‘ In the words of the Netziv: ‘By Torah law the man has no kinyan in his wife except for marital status alone.’ Rabbi Yosef Eliyahu Henkin explains: ‘Apart from marital status, however, the husband has no kinyan at all.’ And Rabbi Elchanan Wasserman: ‘In kiddushin there is a kinyan for marital status, that she serve him. Surely he acquires her, and the prohibition … the betrother effects a kinyan and the prohibition follows as a derivative of the kinyan, or vice versa, he effects the prohibition and the kinyan follows from the prohibition.’ Lubitch learns from this: even if some limited the scope of the kinyan to marital status alone, the proprietary element is still present in the act of kiddushin. But this is again a mistake, or at least it begs the question. On my view, none of these sources speaks in any way about ownership. They speak about kinyan in the sense of a kinyan act that imposes the legal effect of a marriage contract, which of course includes the mutual obligations between the spouses. This contract, which takes effect through the kinyan act, obligates the woman to sexual relations and the husband likewise toward her. In general, the concept of ‘acquisition of prohibition’ in Jewish law means a prohibitory status that comes into being through a kinyan act, not a kind of ownership. The source of the concept is the slave, and there, in a situation where the slave was abandoned, what is called ‘one whose bill of emancipation is delayed,’ the master has no monetary right or ownership over him. Only his prohibitory status remains, but since that status was created by the original kinyan that was performed with regard to the slave, it is called

Akdamot 31 • Adar II 5779. ‘acquisition of prohibition.’ This is a prohibitory status with no dimension of ownership whatsoever, exactly like the relationship between husband and wife. D. The law of the land is the law and women’s intention today. I would now like to complete the picture with a short discussion of the two arguments Lubitch brings to strengthen her claim that kiddushin is no longer valid today. The law of the land. Lubitch claims that because the principle of equality has constitutional value among us, kiddushin is an illegal act and therefore invalid by force of ‘the law of the land is the law.’ To make an argument on the basis of the law of the land, two conditions are required: a factual condition, that the act be forbidden by civil law; and a halakhic condition, that the principle of the law of the land have halakhic force in the matter at hand. The absence of either one of these two conditions is enough to collapse the argument. In our case neither condition is met. On the factual plane, it is accepted in our circles that law is determined by the legislature and not by the will of any citizen, positive and important as he may be. Even if Rivka Lubitch or I, small as I am, were to recommend to the legislature that kiddushin be forbidden by law, as matters presently stand Israeli law recognizes kiddushin as valid and, regrettably, even requires every Jewish couple to marry in accordance with the law of Moses and Israel. As long as that is the case, there is no legal or statutory prohibition on kiddushin in accordance with the law of Moses and Israel. More than that, I allow myself to guess that even if Rivka Lubitch were to petition the High Court against the institution of kiddushin in the name of equality, the petition would be rejected. On the halakhic plane, the law of the land applies only in monetary law. The regime cannot obligate us to eat pork or forbid us to keep the Sabbath, and by the same token it cannot forbid us to marry in accordance with the law of Moses and Israel. Even if it were to forbid this, and as noted it does not, that would not have halakhic validity. Therefore Lubitch’s claim that kiddushin is invalid because of ‘the law of the land is the law’ is absurd. Incidentally, Shmuel Holdheim, one of the radical thinkers of Reform, preceded her and argued exactly the same thing, and many already refuted him decisively. See also my article ‘What Is a Legal Effect?’ above, note 6. From this it is clear why the connection Lubitch makes to statements of the decisors about the abolition of slavery by force of the law of the land is mistaken. Slavery is a monetary law, and therefore the law of the land is in fact relevant there. The best-known response is Teshuvot Be-Anshei Aven by Rabbi Pinhas Menahem Heilprin, who himself was suspected of Reform tendencies, see for example Rabbi Yitzhak Zvi Margoliot in his book Tokef ha-Talmud. See also the pamphlet Ein Tenai be-Nissuin, which cites responses by leading decisors to similar claims raised by French rabbis in the well-known controversy over marriage.

Do Kiddushin Impose Ownership? Women’s intention. Lubitch writes that there is a strong presumption that women today certainly do not consent to kiddushin if its meaning is the husband’s ownership over them, and in her view this is true even of Haredi women and women of every type and shade, and therefore kiddushin today is not valid. It seems to me that here too, as in the previous section, Lubitch confuses the desired, in her eyes, with the actual, or her own wishes and values with reality. The fact is that women today do consent to kiddushin and know exactly what it involves. Even if, on her account, they are not aware of the theoretical definitions, that it is the husband’s ownership over them, that makes no difference. Under both law and Jewish law, in the law of contracts, if you know what you are undertaking and consent to it, the contract is valid, except in cases forbidden by mandatory law. This argument of Lubitch’s too is absurd on its face. If we add to this my interpretation of kiddushin, that it is not ownership but a contract, this argument of course collapses of itself. Summary: the problem of inequality in marriage and possible directions for solving it. My purpose in this article was to defend my claim that the act of kiddushin does not impose the husband’s ownership on his wife but rather constitutes a bilateral contract that creates mutual obligations between them. A study of the early and later authorities shows that most of them did not understand kiddushin as a kinyan of ownership, and even if a minority among them thought otherwise, and I doubt it, why should we adopt precisely that minority as faithful to the spirit of the Torah and because of that abolish the institution of kiddushin, which is a positive commandment? Moreover, even if a proprietary conception were to emerge from the Talmud and the early authorities, it still would not follow that we should forgo the requirement that kiddushin precede marriage and thereby transgress the Torah’s will and the halakhah. The necessary conclusion would be either to bow before the Torah’s law, if there were clear proof from the Talmud, and there is none, or to adopt another interpretation of kiddushin, if there were clear proofs from all the early and later authorities, and there are none, namely that it is a contract and not ownership. In every case, we must fulfill our halakhic duty and precede marriage with kiddushin. In the book I am writing on this subject, I show that a demand for halakhic change must satisfy three conditions: need, to show that there is a problem and offer a diagnosis of it; validity, to show that the proposed mechanism of change is halakhically valid; and effectiveness, to show that the proposed change in fact solves the problem. It seems to me that Lubitch’s article meets none of these requirements. True, the problem of asymmetry and lack of gender equality in marriage does exist. But Lubitch’s diagnosis, that the source of this inequality is the kinyan of kiddushin which grants the husband ownership of the woman, is mistaken. That is not the meaning of kiddushin and that is not the basis of the inequality. In addition, her proposal is not valid and does not solve the problem, because the solutions she proposes are contrary to marriage in accordance with the law of Moses and Israel. In my view such a proposal throws out the baby with the bathwater. The gender inequality that exists in Jewish law must be confronted by solutions that reduce its consequences, such as a condition in the kiddushin, a prenuptial contract, expropriating the money of kiddushin from recalcitrant husbands, following Berakhyahu Lifshitz, more forceful and blunt coercion of recalcitrant husbands

Akdamot 31 • Adar II 5779. (Rabbi Sheilat) and the like, but abolishing kiddushin is not the solution. There is no justification for transgressing Jewish law for this purpose. It is not necessary, not useful, and it does not solve the problem. My feeling throughout Lubitch’s article is that there is here a heap of different arguments, not one of which is necessary and some of which are simply wrong; that there is a tendentious choice of interpretations of kiddushin that conflict with morality when there are more correct interpretations that fit morality; and finally, that her sweeping conclusion is to go against Jewish law. It seems as though Lubitch marked out in advance a problem in the institution of kiddushin and is doing everything to prove it. Beyond that, my sense is that her criticism is based more on the terminology, ‘baal,’ ‘kinyan,’ and the like, and on the character of the ceremony, who gives a ring to whom, and less on the essence, namely the practical consequences. In my view the important question is the essence. There there really are problems, and the important discussion is how we can repair them. But it is clear that they have no connection at all to the question of the proprietary nature of kiddushin. In conclusion, I will note that I very much share Lubitch’s criticism of the authorized institutions in Israel, the Chief Rabbinate and the legislature, which are doing nothing about this painful issue even though much could be done. Presumably this is what led her to these radical proposals, but in my opinion what is incumbent upon us today is to cause them to act and repair, and to that even I, a small and insignificant person, try to contribute actively, and not to cast off our halakhic obligation. The Chief Rabbinate does enough damage even without causing God-fearing people to deviate from Torah and Jewish law. The people of the Chief Rabbinate will be the first to rejoice in pointing out that whoever does not follow their path ends up deviating from Jewish law. Precisely because I identify with Lubitch’s struggle against the monopoly of the Chief Rabbinate, I oppose such initiatives. It is a pity to place a winning card in their hands.